United States District Court, W.D. Washington
Honorable Richard A. Jones United States District Judge
matter comes before the Court on Plaintiff Susan Otos's
Motion to Compel Answers and Responses to Plaintiff's
Discovery Requests. Dkt. # 20. Defendant WHPacific, Inc.
(“WHP”) opposes the Motion. Dkt. # 23.
filed suit against WHP for age discrimination, gender
discrimination, and wrongful discharge. Dkt. # 1-1
(Complaint). The parties met and conferred several times to
discuss discovery disagreements but have come to a
standstill. Plaintiff requested that WHP produce discovery
from two non-party affiliates: NANA Development Corporation
(“NANA”) and Grand Isle Shipyard
(“GIS”). WHP denies that it has access to either
NANA's or GIS's documents. Plaintiff further
requested, generally, that WHP fully comply with her
discovery requests and submit more timely productions. WHP
claims that it has consistently produced documents on a
rolling basis as they become available. Unable to resolve the
issues, Plaintiff now moves this Court to compel WHP to
comply with her discovery requests.
Court has broad discretion to control discovery. Avila v.
Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th
Cir. 2011). That discretion is guided by several principles.
Most importantly, the scope of discovery is broad. A party
must respond to any discovery request that is not privileged
and that is “reasonably calculated to lead to the
discovery of admissible evidence.” Fed.R.Civ.P.
26(b)(1). The Court, however, must limit discovery where it
can be obtained from some other source that is more
convenient, less burdensome, or less expensive, or where its
“burden or expense . . . outweighs its likely benefit,
considering the needs of the case, the amount in controversy,
the parties' resources, the importance of the issues at
stake in the action, and the importance of the discovery in
resolving these issues.” Fed.R.Civ.P. 26(b)(2)(C)(i),
to Rule 37(a)(5)(A), if a motion to compel is granted, or if
requested discovery is provided after the motion is filed,
“the court must, after giving an opportunity to be
heard, require the party . . . whose conduct necessitated the
motion, the party or attorney advising that conduct, or both
to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees.” But
the Court is precluded from awarding expenses if: “(i)
the movant filed the motion before attempting in good faith
to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or
objection was substantially justified; or (iii) other
circumstances make an award of expenses unjust.”
“Control” Under Rule 34
Rule of Civil Procedure 34(a) allows courts to order
production of documents or items as long as those documents
or items are in the possession, custody, or control of a
party to the litigation. Production of documents or items
possessed by related non-parties is warranted as long as the
party to the litigation has custody or control of those
documents or items. In re Citric Acid Litig., 191
F.3d 1090, 1107 (9th Cir. 1999); United States v.
Int'l Union of Petroleum & Indus. Workers, 870
F.2d 1450, 1452 (9th Cir. 1989). “Control” is
defined as “the legal right to obtain documents on
demand.” Int'l Union, 870 F.2d at 1452.
The Ninth Circuit has refused to expand the definition of
“control” to include a party's practical
ability to obtain the documents or items requested. In re
Citric, 191 F.3d at 1107-1108. The party seeking
production bears the burden of demonstrating actual
control; proof of theoretical control is not enough to meet
this burden. Int'l Union, 870 F.2d at 1454.
the definition of “control” set forth in
International Union and In re Citric, the
Court notes that courts within the Ninth Circuit (including
courts within the same district) have taken inconsistent
positions when addressing whether a subsidiary possesses
sufficient “control” of documents or items
allegedly in their parent corporation's possession.
See, e.g., AFL Telecomms. LLC v. SurplusEQ.com
Inc., No. CV11-1086 PHX DGC, 2012 WL 2590557, at *2 (D.
Ariz. July 5, 2012) (relying on a Third Circuit case cited by
the Ninth Circuit in In re Citric to adopt a more
expansive definition of “control”); see also
Thales Avionics Inc. v. Matsushita Avionics Sys. Corp.,
No. SACV 04-454-JVS(MLGx), 2006 WL 6534230, at *4-5 (C.D.
Cal. Mar. 8, 2006) (relying on case law outside the Ninth
Circuit to consider the “nature of the
relationship” between a subsidiary and its parent
corporation to determine “control”);
Choice-Intersil Microsystems, Inc. v. Agere
Sys., Inc., 224 F.R.D. 471, 472-73 (N.D. Cal. 2004)
(same). However, as duly noted by district courts within the
Ninth Circuit, the Ninth Circuit has not expanded the
definition of “control” to include a practical
ability to obtain documents. E.g., Seifi v.
Mercedez-Benz U.S.A., LLC, No. 12-cv-05493-TEH(JSC),
2014 WL 7187111, at *2-3 (N.D. Cal. Dec. 16, 2014) (binding
Ninth Circuit law does not rely on an expansive definition of
“control”); Dugan v. Lloyds TSB Bank
PLC, No. 12-cv-02549-WHA (NJV), 2013 WL 4758055, at *3
(N.D. Cal. Sept. 4, 2013) (acknowledging that while
“control” between a subsidiary and its parent may
be established under a more expansive definition, the same is
not true under Ninth Circuit law); Ehrlich v. BMW,
No. CV 10-1151-ABC (PJWx), 2011 WL 3489105, at *1 (C.D. Cal.
May 2, 2011) (“Plaintiff argues, it seems, that, based
on the inherent relationship between the two companies, [the
subsidiary] must have access to these documents. This theory
has been rejected by the Ninth Circuit and is rejected
here.”); Gen. Metals of Tacoma, Inc. v. Bean Envtl.
LLC, No. C05-5306 RBL, 2006 WL 2927730, at *2 (W.D.
Wash. Oct. 11, 2006) (refusing to expand the test for
determining “control”); but see Stella Sys.,
LLC v. MedeAnalytics, Inc., No. 14-cv-00880-LB, 2015 WL
1870052, at *3 (N.D. Cal. Apr. 22, 2015) (applying expansive
definition of control when considering whether a party has
control of documents possessed by an unrelated company).
Court agrees that the proper test for determining control
between a subsidiary and its parent is whether the subsidiary
has the legal right to demand production of the documents or
things sought from its parent. Moreover, the Court finds that
Plaintiff failed to meet her burden to show that WHP has the
proper control over either NANA's or GIS's documents.
Plaintiff argues a close relationship between these
companies: she alleges that WHP is a wholly owned subsidiary,
that the companies have overlapping executives and personnel,
and that these overlapping personnel made decisions with
regard to her employment with WHP. Dkt. ## 20, 26. This is
not sufficient to show that WHP has control over GIS or
NANA's documents. As the Court explained through the
cited law above, convenient access to documents does not
translate to the legal control necessary for this Court to
grant the Motion. Though NANA or GIS may have been able to
exercise such control over WHP's documents, the reverse
does not hold true based upon Plaintiff's
further alleges that NANA and GIS have acted as agents for
WHP. To support this argument, Plaintiff cites the
Administrative Services Agreement entered into by WHP and
GIS. Dkt. # 26 at 5. However, this Agreement explicitly
denies any kind of agency relationship. Dkt. # 21 at 87
(“The parties hereto are independent contractors and
this Agreement shall in no way create a partnership, joint
venture, agency or other relationship between them.”).
Inadequate Or ...